“Inasmuch as every government is an artificial person, an abstraction, and a creature of the mind only, a government can interface only with other artificial persons

The imaginary – having neither actuality nor substance – is foreclosed from creating and attaining parity with the tangible

The legal manifestation of this that no government, as well as any law, agency, aspect, court, etc. therefor can concern itself with anything other than corporate, artificial persons and the contracts between them”

“This cause has been much obscured by the irregularity of the
pleadings, which present a medley of procedure, partly according
to the common, and partly according to the civil, law

We must endeavour to extract a state of the case from the Record,
Documents, and Acts, which have been exhibited

It appears, that on the

25th

of

November, 1775

(1 Jour. Congress, 259 )

Congress

passed a series of

Resolutions

respecting captures

These

Resolutions

are as follow:

“Whereas it appears from undoubted information, that many
”
vessels, which had cleared at the respective Custom-houses
”
in these Colonies, agreeable to the regulations established by
”
Acts of the British Parliament, have, in a lawless manner,
”
without even the semblance of just authority, been seized by
”
his Majesty’s ships of war, and carried into the harbour of
”
Boston, and other ports, where they have been rifled of their
”
cargoes, by order of his Majesty’s naval and military officers,
”
there commanding, without the said vessels having been proceeded
”
against by any form of trial, and without the charge of
”
having offended against any law

“And whereas orders have been issued in his Majesty’s
”
name, to the commanders of his ships of war, to proceed as
”
in the case of actual rebellion against such of the sea-port
”
towns and places being accessible to the king’s ships, in
”
which any troops shall be raised or military works erected,
………………………………………………..
Page 55
………………………………………………..
”
under colour of which said orders, the commanders of his majesty’s
”
said ships of war have already burned and destroyed
”
the flourishing and populous town of Falmouth, and have
”
fired upon and much injured several other towns within the
”
United Colonies, and dispersed at a late season of the year,
”
hundreds of helpless women and children, with a savage hope,
”
that those may perish under the approaching rigours of the
”
season, who may chance to escape destruction from fire and
”
sword, a mode of warfare long exploded amongst civilized
”
nations

“And whereas the good people of these colonies, sensibly
”
affected by the destruction of their property and other
unprovoked
”
injuries, have at last determined to prevent as much
”
as possible a repetition thereof, and to procure some reparation
”
for the same, by fitting out armed vessels and ships of
”
force

In the execution of which commendable designs it is
”
possible, that those who have not been instrumental in the
”
unwarrantable violences above mentioned may suffer, unless
”
some laws be made to regulate, and tribunals erected competent
”
to determine the propriety of captures

Therefore resolved,

“1. That all such ships of war, frigates, sloops, cutters,
”
and armed vessels as are or shall be employed in the present
”
cruel and unjust war, against the United Colonies, and shall
”
fall into the hands of, or be taken by, the inhabitants thereof,
”
be seized and forfeited to and for the purposes herein after
”
mentioned

“2. Resolved, That all transport vessels in the same service,
”
having on board any troops, arms, ammunition, cloathing,
”
provisions, military or naval stores of what kind soever, and
”
all vessels to whomsoever belonging, that shall be employed
”
in carrying provisions or other necessaries to the British army
”
or armies, or navy, that now are, or shall hereafter be within
”
any of the United Colonies, or any goods, wares, or merchandize
”
for the use of such fleet or army, shall be liable to
”
seizure, and with their cargoes shall be confiscated

“3. That no master or commander of any vessel shall be entitled
”
to cruize for, or make prize of any vessel or cargo, before
”
he shall have obtained a commission from the Congress,
”
or from such person or persons as shall be for that purpose appointed,
”
in some one of the United Colonies

“4. That it be and is hereby recommended to the several
”
legislatures in the United Colonies, as soon as possible, to
”
erect Courts of Justice, or give jurisdiction to the courts now
”
in being, for the purpose of determining concerning the captures
”
to be made as aforesaid, and to provide that all trials in
………………………………………………..
Page 56
………………………………………………..
”
such case be had by a Jury under such qualifications, as to
”
the respective legislatures shall seem expedient,

“5. That all prosecutions shall be commenced in the court of
”
that Colony, in which the captures shall be made, but if no
”
such court be at that time erected in the said colony, or if
”
the capture be made on open sea, then the prosecution shall
“be
in the court of such Colony as the captor may find most
”
convenient; provided that nothing contained in this resolution
”
shall be construed so as to enable the captor to remove
”
his prize from any Colony competent to determine concerning
”
the seizure, after he shall have carried the vessel so seized
”
within any harbor of the same

“6. That in all cases an appeal shall be allowed to the Congress,
”
or such person or persons as they shall appoint for the
”
trial of appeals, provided the appeal be demanded within five
”
days after definitive sentence, and such appeal be lodged with
”
the secretary of Congress within forty days afterwards, and
”
provided the party appealing shall give security to prosecute
”
the said appeal to effect, and in case of the death of the secretary
”
during the recess of Congress, then the said appeal to be
”
lodged in Congress within twenty days after the meeting
”
thereof

“7. That when any vessel or vessels, shall be fitted out, at
”
the expence of any private person or persons, then the captures
”
made, shall be to the use of the owner or owners of the
”
said vessel or vessels; that where the vessels employed in the
”
capture shall be fitted out at the expence of any of the United
”
Colonies, then one third of the prize taken shall be to
”
the use of the captors, and the remaining two thirds to the
”
use of the said Colony, and where the vessels so employed,
”
shall be fitted out at the continental charge, then one third
”
shall go to the captors, and the remaining two thirds, to the
”
use of the United Colonies; provided nevertheless, that if
”
the capture be a vessel of war, then the captors shall be entitled
”
to one half of the value, and the remainder shall go to
”
the colony or continent as the case may be, the necessary
”
charges of condemnation of all
prizes being deducted before
”
distribution made”

[Here the Judge delivered the historical narrative of the cause, with which this report is introduced, and then proceeded as follows:]

PATERSON, Justice.

I have been particular in stating the

case,

and giving an

historical narrative

of the

transaction,

in order that the

grounds

of

decision

may be

fully understood

The

pleadings

consist of a heap of

materials,

thrown together in an

irregular manner,

and,

if

examined

by the

strict rules

of

common law,

cannot stand the

test

of

legal criticism

We are, however, to view the

proceedings

as before a

Court of Admiralty,

which is

not governed

by the

rigid principles

of

common law

Order

and

systematic arrangement

are no small beauties

in

juridical proceedings;

and,

whatever may be

said

to the

contrary,

it will,

on

fair investigation,

appear,

that

good pleading

is

founded

on

sound logic,

and

good sense

In the

discussion

of the

cause,

several questions

have been

agitated;

some of which,

involving

constitutional points,

are of

great importance

The

jurisdiction

of the

Commissioners of Appeals

has been

questioned
………………………………………………..
Page 80
………………………………………………..
The

jurisdiction

of the

Court of Appeals

has been

questioned

These

jurisdictions

turning on the

competency

of

Congress,

it has been

questioned,

whether that

body

had

authority

to

institute

such

tribunals

And, lastly, the

jurisdiction

of the

District Court of New Hampshire

has been

questioned

In every step we take, the

point

of

jurisdiction

meets us

I. The

question

first in order,

is, whether the

Commissioners of Appeals

had

jurisdiction,

or, in other words, whether

Congress,

before the

ratification

of the

articles of confederation,

had

authority

to

institute

such a

tribunal,

with

appellate jurisdiction

in

cases

of

prize?

Much has been

said

respecting the

powers

of

Congress

On this

part

of the

subject

the

counsel

on

both sides

displayed great

ingenuity,

and

erudition,

and that too in a

stile

of

eloquence

equal to the

magnitude

of the

question

The

powers

of

Congress

were

revolutionary

in their

nature,

arising out of

events,

adequate to every

national emergency,

and

co-extensive

with the

object

to be

attained

Congress

was the

general,

supreme,

and

controuling council

of the

nation,

the

centre of union,

the

centre of force,

and the

sun

of the

political system

To

determine

what their

powers

were,

we must

enquire

what

powers

they

exercised

Congress

raised armies,

fitted out a navy,

and

prescribed rules

for their

government:

Congress

conducted all

military operations

both by

land

and

sea:

Congress

emitted bills of credit,

received

and

sent

ambassadors,

and

made treaties:

Congress

commissioned privateers

to

cruize against

the

enemy,

directed

what

vessels

should be

liable

to

capture,

and

prescribed rules

for the

distribution

of

prizes

These

high acts

of

sovereignty

were

submitted

to,

acquiesced in,

and

approved of,

by the

people of America

In

Congress

were

vested,

because by

Congress

were

exercised

with the

approbation

of the

people,

the

rights

and

powers

of

war

and

peace

In every

government,

whether it consists of

many states,

or

of a few,

or

whether it be of a

federal

or

consolidated

nature,

there must be a

supreme power

or

will;

the

rights

of

war

and

peace

are

component parts

of this

supremacy,

and

incidental thereto

is the

question

of

prize

The

question

of

prize

grows out of the

nature

of the

thing

If it be

asked,

in whom,

during our

revolution war,

was

lodged,

and by

whom

was

exercised

this

supreme authority?

No one will hesitate

for an answer

It was lodged in,

and exercised by,

Congress;

it was there,

or no where;

the

states individually

did not,

and,

with safety,

could not exercise it

Disastrous

would have been the

issue

of the

contest,

if the

States,

separately,

had

exercised

the

powers of war

For, in such

case,

there would have been as many

supreme
………………………………………………..
Page 81
………………………………………………..
wills

as there were

states,

and as many

wars

as there were

wills

Happily, however, for

America,

this was not the

case;

there was but

one war,

and

one sovereign will

to

conduct it

The danger

being

imminent,

and

common,

it became

necessary

for the

people

or

colonies

to

coalesce

and

act in concert,

in order to

divert,

or

break,

the

violence

of the

gathering storm;

they

accordingly grew

into

union,

and

formed

one great political body,

of which

Congress

was the

directing principle

and

soul

As to

war

and

peace,

and their

necessary incidents,

Congress,

by the

unanimous voice

of the

people,

exercised exclusive jurisdiction,

and stood,

like Jove,

amidst the deities of old,

paramount,

and

supreme

The truth is, that the States, individually, were not known nor
recognized as sovereign, by foreign nations, nor are they now; the States collectively, under Congress, as the connecting point, or head, were acknowledged by foreign powers as sovereign, particularly in that acceptation of the term, which is applicable to all great national concerns, and in the exercise of which other sovereigns would be more immediately interested; such, for instance, as the rights of war and peace, of making treaties, and
sending and receiving ambassadors

Besides, every body must be
amenable to the authority under which he acts

If he accept from Congress a commission to cruize against the enemy, he must be responsible to them for his conduct

If, under colour of such commission, he had violated the law of nations, Congress would have been called upon to make atonement and redress

The persons who exercise the right or authority of commissioning privateers, must, of course, have the right or authority of examining into
the conduct of the officer acting under such commission, and of
confirming or annulling his transactions and deeds

In the present case, the Captain of the M’Clary obtained his commission from Congress; under that commission he cruised on the high seas, and captured the Susanna; and for the legality of that capture he must ultimately be responsible to Congress, or their constituted authority

This results from the nature of the
thing; and, besides, was expressly stipulated on the part of Congress

The authority exercised by Congress in granting commissions to privateers, was approved and ratified by the several colonies or states, because they received and filled up
the commissions and bonds, and returned the latter to Congress — New-Hampshire did so, as well as the rest

Another circumstance, worthy of notice, is the conduct of New-Hampshire, by her Delegate in Congress, in the case of the sloop Active

Acts of Congress,

6th March, 1779. — By this decision,

New-Hampshire

concurred in binding the other states

Did she not also bind herself?

Before the

articles of confederation

were

ratified,

or even

formed,

a

league

of some kind

subsisted
………………………………………………..
Page 82
………………………………………………..
among the

states;

and, whether that

league

originated in

compact,

or a sort of

tacit consent,

resulting from their situation, the exigencies of the times, and the nature of the warfare, or from all combined, is utterly immaterial

The

States,

when in

Congress,

stood on the floor of

equality;

and, until otherwise stipulated, the majority of them must controul

In such a

confederacy,

for a

state

to bind others, and not, in similar cases, be bound herself, is a

solecism

Still, however, it is contended, that

New-Hampshire

was not bound, nor

Congress sovereign

as to war and peace, and their incidents, because they resisted this

supremacy

in the case of the

Susanna

But I am, notwithstanding, of opinion, that

New-Hampshire

was bound, and

Congress supreme,

for the reasons already assigned, and that the continued to be bound, because she continued in the

confederacy

As long as she continued to be one of the

federal states,

it must have been on

equal terms

If the would not submit to the exercise of the act of

sovereignty

contended for by

Congress,

and the other

states,

she should have withdrawn herself from the

confederacy

In the

Resolutions

of

Congress

of the

6th

of

March, 1779,

is

contained

a

course of reasoning,

which, in my

opinion,

is

cogent

and

conclusive

5 Jour. Cong. 86, 87, 88, 89, 90

“The

committee,

consisting of

Mr. Floyd,

Mr. Ellery,

and

Mr. Burke,

to whom was

referred

the

report of the committee

on

appeals

of

January 19th, 1779,

having, in pursuance of the
instructions to them given, examined into the causes of the refusal of the

Judge

of the

Court of Admiralty

for the

State of Pennsylvania,

to carry into execution the decree of the

Court

or

committee of appeals,

report,

“That on a libel in the

court of admiralty

for the

state of Pennsylvania

in the case of the

sleep Active,

the jury found a verdict in the following words, viz.

“one fourth of the nett proceeds of the

sloop Active

and her cargo to the first claimants, three fourths of the nett proceeds of the said

sloop

and her cargo to the libellant and the second claimant, as per agreement between them; which verdict was confirmed by the

judge

of the

court,

and sentence passed thereon

From this sentence or judgment and verdict, an appeal was lodged with the

secretary of Congress,

and referred to the

committee appointed

by

Congress

“to hear and determine finally upon all appeals brought to

Congress,”

from the

Courts of Admiralty

of the

several States:

“That the said

committee,

after solemn argument and full hearing of the parties by their advocates, and taking time to consider thereof, proceeded to the publication of their definitive sentence or decree, thereby reversing the sentence of the

Court of Admiralty,

making a new decree, and ordering process to
………………………………………………..
Page 83
………………………………………………..
issue out of the

Court of Admiralty

for the

state of Pennsylvania

to carry this their decree into execution:

“That the

judge

of the

Court of Admiralty

refused to carry into execution the decree of the said committee on appeals, and has assigned as the reason of his refusal, that an act of the Legislature of the said State has declared, that the finding of a jury shall establish the facts in all trials in the

Courts of Admiralty,

without re-examination or appeal, and that an appeal is permitted only from the decree of the

judge:

“That having examined the said act, which is entitled,

“an act for establishing a

Court of Admiralty,”

passed

at a

session

which

commenced

on the

4th

of

August, 1778,

the

committee

find the

following words,

viz.

“the finding of a

jury

shall establish the

facts,

without

re-examination,

or

appeal,”

and in the seventh section of the same act the following words, viz.

“in all cases of captures an appeal from the decree of the

Judge of Admiralty of this State,

shall be allowed to the

Continental Congress,

or such person or persons as they may from time to time appoint for
hearing and trying

appeals”

“That although

Congress,

by their

resolution

of

November 25th, 1775,

recommended it to the

several legislatures,

to

erect courts

for the purpose of determining concerning captures, and to provide that all trials in such cases be had by a jury, yet it is provided, that in all cases an appeal shall be allowed to

Congress,

or to such person or persons as they shall appoint for the trial of

appeals:”

whereupon,

“Resolved, That

Congress,

or such person or persons as they appoint, to hear and determine appeals from the

courts of Admiralty,

have necessarily the

power

to examine as well into decisions on facts as decisions on the law, and to decree finally thereon, and that no finding of a jury in any

court of Admiralty,

or court for determining the legality of captures on the high seas, can or ought to destroy the right of appeal, and the

re-examination

of the

facts

reserved to

Congress:

“That no act of any one

state

can or ought to destroy the right of appeals to

Congress,

in the sense above declared:

“That

Congress

is by these

United States,

invested with the

supreme sovereign power

of

war

and

peace:

“That the power of executing the

law of nations

is essential to the

sovereign supreme power

of

war

and

peace:

“That the legality of all captures on the high seas must be determined by the

law of nations:

“That the authority ultimately and finally to decide on all matters and questions touching the

law of nations,

does reside and is vested in the

sovereign supreme power

of

war

and

peace:
………………………………………………..
Page 84
………………………………………………..
“That a controul by appeal is necessary, in order to compel a
just and uniform execution of the

law of nations

“That the said controul must extend as well over the decisions of juries, as judges, in courts for determining the legality of captures on the sea; otherwise the juries would be possessed of the ultimate supreme power of executing the

law of nations

in all cases of captures, and might, at any time, exercise the same in such manner, as to prevent a possibility of being controuled; a construction which involves many inconveniences and absurdities, destroys an essential part of the power of war and peace entrusted to

Congress,

and would disable the

Congress of the United States,

from giving satisfaction to

foreign nations

complaining of a violation of neutralities, of treaties, or other
breaches of the

law of nations,

and would enable a jury, in any
one

state,

to involve the

United States

in hostilities; a construction, which for these and many other reasons, is inadmissible:

“That this power of controuling by appeal, the

several admiralty jurisdictions of the States,

has hitherto been exercised by

Congress,

by the medium of a

committee

of their own

members:

“Resolved, That the committee before whom was determined the
appeal from the

to the end that proper measures may be adopted for removing the said obstacles; and that a committee of three be appointed to hold the said conference, with the

committee

of the

General Assembly

of

Pennsylvania:

“The members chosen,

Mr. Paca,

Mr. Burke,

and

Mr. R.H. Lee”

I shall close this head of discourse with observing, that it is with diffidence I have ventured to give an opinion on a questien so novel and intricate, and respecting which, men,
eminent for their talents, their literary attainments, and skill in

jurisprudence,

have been divided in sentiment

The opinion, however, which has been given, is the result of conviction; if wrong, it is the error of the head, and as such will carry its
apology with it

II. Whether, after the

articles of consederation

were

ratified,

the

Court of Appeals

had

jurisdiction

of the

subject matter?

However problematical the opinion, which has been delivered on the preceding point, may be, I apprehend, that little doubt or
difficulty can arise on the present question

By the

9th article of the Consederation,

the

United States,

in Congress assembled,

are vested, among other things, with the

sole

and

exclusive power

of

establishing rules

for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes, taken by

land

or

naval

forces

in the

service

of the

United States,

shall be divided or appropriated; of granting letters of marque and
reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally, appeals in all cases of captures

The

Court of Appeals,

in

September 1783,

decided upon the point of

jurisdiction

either directly, or incidentally; for,
after a full hearing, they decreed that the sentences passed by the

Superior

and

Inferior

Courts

of

New-Hampshire

should be reversed and annulled, and the property be restored

This decree being made by a

court,

constitutionally established,

of

competent authority,

and the

highest jurisdiction,

is conclusive and final

It cannot be opened and investigated; for, neither this

court,

nor any other, can, in a collateral way, review the proceedings of a tribunal, which had

jurisdiction

of the

subject-matter

The

Court of Appeals

was competent to the decision; they have adjudicated as well on the

jurisdiction

as the merits of the cause, and we must suppose that they have acted properly

This also is an answer as to irregularities, if any there were, which
may have taken place in the proceedings
………………………………………………..
Page 86
………………………………………………..
before the

Court of Appeals,

or in the mode of removing the cause
before them

This

court

cannot take notice of irregularities in the proceedings, or error in the decision, of the

Court of Appeals

The question is at rest; it ought not to be again disturbed

III. Whether the

District Court of New-Hampshire

had

jurisdiction;

or, in other words, whether the libel exhibited before that court, was the

proper remedy,

or mode of carrying into execution, either specifically, or by way of damages, the decree of the

Court of Appeals?

On this point I entertain no doubts

Recurrence to facts will answer the question

The existence of the

Court of Appeals

terminated with the

old government;

this also was the case with the subordinate

Court of Admiralty

in the

State of New-Hampshire

The property was not restored to the libellants, nor were they compensated in damages; of course the decree in their favour remains unsatisfied

They had no

remedy

at

common law;

they had none in

equity;

the only forum competent to give

redress

is the

District Court of New-Hampshire,

because it has

admiralty jurisdiction

There they applied, and, in my opinion, with great propriety

Judges may die, and courts be at an end; but justice still lives, and, though she may sleep for a while, will eventually awake, and must be satisfied

Having discussed the preliminary questions relative to

jurisdiction,

we shall now consider the proceedings in the

Circuit Court of New-Hampshire

And here the first question is, whether by the death of

Elisha Doane,

before the judgment rendered in the

court of appeals,

that judgment is not avoided?

The death of Doane does not appear on the record of the proceedings before the

court of appeals;

it is in evidence from the certificate of the judge of probates, which is annexed to the record transmitted from the

Circuit Court of New-Hampshire

Many answers have been given to this question; some of which are
cogent as well as plausible

On this subject, it will be sufficient to observe, that admitting the death of Doane, and that it can be taken notice of in this

court,

it is unavailing, because the proceedings in a

court of admiralty

are

in rem

The sentence of a

court of admiralty,

or of appeal in questions of prize,

binds all the world,

as to every thing contained in it,

because

all the world are parties to it

The sentence, so far as it goes, is

conclusive

to

all persons

The most formidable objections have been levelled against the
damages

1. It is said, that the damages ought not to have been given,
because they were not prayed

The answer to this objection
………………………………………………..
Page 87
………………………………………………..
is satisfactory — the prayer is for

general relief,

and therefore

sufficient

2. If any damages ought to be given, yet none ought to have
been awarded against

George Wentworth,

because he was an

agent,

and paid the money over under the decree of the

Court of New Hampshire

If any

Agent

pay over, after notice, he pays wrongfully, and shall not be excused

In this case

George Wentworth

was a party to the suit, he appeared as one of the Libellants, and must be

liable

to all the

legal consequences

resulting from such a situation

As a party, he was before the

court,

and

privy to the appeal,

which was made in due season

The appeal did, from the moment it was made, suspend the execution of the decree, and that whether it was received or not;

[fn*]

especially in cases like the present, where

George Wentworth

was a party to the suit, before the

court,

and had notice of its having been tendered or made

In such a predicament, he ought not to have paid over; but should
have awaited the ultimate decision of the

Court of Appeals

If he paid, it was at his peril; he took the risk upon himself, and in case of undue payment, became

liable

It has been said, that an inhibition should have been issued, and that without it the appeal did not suspend the execution of the decree

The writ of inhibition is a proper and necessary writ, not because it suspends the effect of the decree, for that is already done by the appeal; but because it enables the

court

of

appellate jurisdiction,

in case of disobedience,

to punish the

inferior court

as being in contempt

The appeal has not this effect, because it is the act of the party, and not of the

superior court

A monition, it is said, ought to have been addressed to the Appellees to enforce their appearance before the

Court of appellate jurisdiction

The answer is, that

George Wentworth,

as well as the others, did appear both before the

Court of Commissioners

and the

Court of Appeals

If a defect, and inquirable into by this

court,

it is cured by appearance

In short,

George Wentworth

was a party to the suit, present in

court,

and had notice of the appeal

If, in such a situation, he undertook to distribute the proceeds, it was at his own risk: and in case of reversal, he made himself

liable

I have doubts how far the

court below

could inquire into the

question

of

agency and payment over, especially as the payment is said to have been made, previously to the argument before the

Court of Appeals,

or even the

Court of Commissioners

The decree is for restoration

If the

Court of Appeals

had issued process to carry their definitive sentence into effect, or
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Page 88
………………………………………………..
had directed the

Maritime Courts of New Hampshire

to have done so, would it, in the instance of

George Wentworth,

have been a

legal justification

to have said, that he had delivered the property, or paid its proceeds, to the captors?

Besides, whatever could have been brought forward, by way of defence, in the

Court of Appeals,

ought there to have been urged and relied upon; and if the party has omitted to do so, he has slipt his opportunity, and is precluded from taking advantage thereof in future

I know, that a distinction is made between

foreign

and

domestic

judgments;

that the latter are conclusive,

whereas the former are liable to investigation

Be it so

But is the principle, upon which this distinction is founded, applicable to
decrees, on questions of prize, in the

highest Court of Admiralty,

which, in such cases, is guided by the

law of Nations,

and not

municipal regulations?

If it is, it must be under very
special circumstances

3. It is objected, that the damages awarded are joint; whereas they ought to have been several

This objection is a found one

But as the facts are spread on the record, it is in the power of the

court

to sever the damages, and so to apportion them as to effectuate substantial justice

The damages should have pursued
and been admeasured by the original decree, which directed, that one moiety of the proceeds should be paid to the owners, and the other to the captors

George Wentworth

received a moiety only; he is

liable

for that, and no more

4. Another objection is, that interest has been calculated from a wrong period, to wit, from the

2d October, 1778;

and therefore the decree of the

Circuit Court

is erroneous

The

Court of Appeals

pronounced their definitive sentence in

September 1783;

by which the judgments of the

inferior

and

superior

Courts of New Hampshire

were reversed, and restoration decreed; they also directed, that the parties should pay their own costs

I am of opinion, that interest should have been computed from the day, on which the definitive sentence of the

Court of Appeals

was pronounced

Of this there can be no doubt with respect to

John Penhallow

and the

owners

Some doubts, however, have been entertained on this point with regard to

George Wentworth

But for the reasons, which have been
assigned, he must be considered in the same situation as the others

Arguments, deducible from the hardship of the case, have been
advanced and insisted upon

It is hard, that

George Wentworth,

who was an

agent,

should be made personally responsible

It is cruel, that

George Wentworth

should be cut down by the collision of conflicting

jurisdictions

But motives of commiseration, from whatever source they flow, must not
………………………………………………..
Page 89
………………………………………………..
mingle in the

I am also of opinion, that the parties should bear their respective costs, which have arisen on the prosecution of the

appeal

in this

court

[fn*] Page 87

2 Dom. 686

IREDELL, Justice

This case, which is of so much novelty and importance, has been argued at the bar with very great ability on both sides

I have listened with the most respectful attention to every thing
that has been said upon it, and the opinion, which I am now to deliver, is the result of the best consideration which I have been able to bestow on the subject

The order in which it has appeared to me most convenient to arrange the different heads of enquiry is as follows:

1. Whether either of the decrees of

June, 1779,

or

September, 1783,

was originally valid?

2. If either of them was so, whether it was a decree which the

District Court of New Hampshire,

or the

Circuit Court of New Hampshire,

acting specially in this cause for the legal reason alledged, had authority to enforce, either by decreeing a
specific execution, or awarding damages for a non-performance of
it?

3. Whether, if the

District

or

Circuit Court

had such an

authority,

it has been executed properly in this instance, under all the circumstances of the case?

4. Whether, in case the

Libellants

were entitled to a

decree

in their favour, but it shall appear that the decree has been erroneous in respect to the relief given, either in the whole or in part, this

court

can rectify the decree, or order it to be rectified by the

court below,

or must affirm or reverse in the whole?

Under the first head it will be proper previously to consider if either of the decrees was final and conclusive, because if that point should be decided in the affirmative, it will render
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Page 90
………………………………………………..
unnecessary a decision of many important questions that otherwise
arise in this cause

This previous point, however, cannot be decided on satisfactory principles, without in some measure tracing the origin of the

general powers

of

Congress,

from the time of the earliest exercise of their authority, to the period when definite and express powers were solemnly and formally given to them by the

articles of confederation

I shall therefore make a few preliminary observations on this subject, though I by no means think it material to go into a full detail

(subsequent to the declaration
of Independence, and until the present constitution of the
United States was formed)

by

States

The

powers

of

Congress

at first were indeed little more than
advisory;

but, in proportion as the danger increased, their powers were gradually enlarged, either by express grant, or by implication arising from a kind of indefinite authority, suited
to the unknown exigencies that might arise

That an undefined authority is dangerous, and ought to be entrusted as cautiously as possible, every man must admit, and none could take more pains, than

Congress

for a long time did, to get their authority regularly defined by a

ratification

of the

articles of confederation

But that previously thereto they did exercise, with the acquiescence of the

States,

high powers of what I may, perhaps, with propriety for distinction, call

external sovereignty,

is unquestionable

Among numerous instances that
might be given of this,

(and which were recited very minutely at the bar)

were the treaties of France in 1778, which no friend to his country at the time questioned in point of authority, nor has been capable of reflecting upon since without gratitude and
satisfaction

Whether among these powers comprehended within their general authority, was that of instituting courts for the trial of all prize causes, was a great and awful question; a
question that demanded deep consideration, and not perhaps
susceptible of an easy decision

That in point of prudence and
propriety it was a power most sit for

Congress

to exercise, I have no doubt

I think all prize causes whatsoever ought to belong to the

national sovereignty

They are to be determined by
the

law of nations

A

prize court

is, in effect, a

court of all the nations in the world,

because all persons,

in every part of the world,

are concluded by its sentences, in cases clearly coming within its

jurisdiction

Even in the case of

citizen

and

citizen

I do not think it a proper subject for mere

municipal regulation,

because as was observed at the bar,

a citizen

may make a

colourable claim,

which the

court

may not be able to detect, and yet a

foreigner

be fatally injured by it

In case of a bona fide claim, it may appear to be good by the proofs
offered to the

court,

but another person living at a distance may have a superior claim, which he has no opportunity to exhibit

It is true a general monition issues,

and this is considered notice
to all the world,

but though this be the construction of the

law

from the necessity of the case, it would be absurd to infer in fact that

all the world had actual notice,

and therefore no superior claimant to the one before the

court

could possibly exist

The

court,

therefore, can never know with certainty whether

citizens

only are interested in the enquiry

But the words
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Page 92
………………………………………………..
“citizen and citizen”

in this case are very ill applied to the parties in question, they not having been

citizens of the same State,

the captors having been

citizens of New Hampshire,

and the claimant

a citizen of Massachusetts-Bay

It never was considered that before the actual signature of the

articles of confederation

a citizen of one State

was to any one purpose

a citizen of another

He was to all substantial purposes as a

Foreigner

to their

forensic jurisprudence

If rigorous law had been enforced, perhaps he might have been deemed an

alien,

without an express provision of the

State

to save him

And as an unjust decision upon the

law of nations,

in the case of a

Foreigner

to all the States,

might, if redress had not been given, have ultimately led to a

foreign war,

an unjust decision on the same

law in one State,

to the

prejudice

of

a citizen of another State,

might have ultimately led, if redress had not been given, to a

civil war,

an evil much the more dreadful of the two

I have made these observations merely as to the propriety that
this power should have been

delegated,

and therefore to shew that if it was assumed without adequate authority, it was not an arbitrary and unnatural assumption of a power, that ought exclusively to belong to a single

State;

but by no means with a view to argue, that because it was proper to be given, therefore it was actually given, a position which, as it would lead to dangerous and inadmissible consequences, cannot be the ground of a legitimate argument

Some of the arguments at the bar, if pushed to an extreme, would tend to establish, that Congress had unlimited power to act at their discretion, so far as the purposes of the war might require; and it was even said, that the Jus Belli never was in any one of the States, and therefore it could not be delegated by
any State to Congress

My principles on this subject are totally different from those which were the foundation of this opinion,
and as it is a point of no small importance, and I find on this
occasion, as I have formerly done on others, considerable mistakes

(as I conceive)

by very able men, owing to a
misapprehension of terms, I will endeavour to state my own
principles on the subject with so much clearness, that whether my
opinion be right or wrong, it may at least be understood what the
opinion really is

If Congress, previous to the articles of confederation, possessed any authority, it was an authority, as I have shewn, derived from the people of each Province in the first instance

When the obnoxious acts of Parliament passed, if the people in
each Province had chosen to resist separately, they undoubtedly had equal right to do so, as to join in general measures of resistance with the people of the other Provinces, however unwise and destructive such a policy might, and undoubtedly
………………………………………………..
Page 93
………………………………………………..
would have been

If they had pursued this separate system, and afterwards the people of each Province had resolved that such
Province should be a free and independent State, the State from
that moment would have become possessed of all the powers of
sovereignty internal and external,

(viz. the exclusive right of providing for their own government, and regulating their intercourse with foreign nations)

as completely as any one of the
ancient Kingdoms or Republics of the world, which never yet had formed, or thought of forming, any sort of Federal union whatever

A distinction was taken at the bar between a state and the people of the state

It is a distinction I am not capable of comprehending

By a State forming a Republic

(speaking of it as a moral person)

I do not mean the Legislature of the State, the Executive of the State, or the Judiciary, but all the citizens which compose that State, and
are, if I may so express myself, integral parts of it; all together forming a body politic

The great distinction between
Monarchies and Republics

(at least our Republics)

in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as subject to him, though in
some countries with many important special limitations:

This, I say, is generally the case, for it has not been so universally

But in a Republic, all the citizens, as such, are equal, and no citizen can rightfully exercise any authority over another, but in virtue of a power constitutionally given by the whole
community, and such authority when exercised, is in effect an act of the whole community which forms such body politic

In such governments, therefore, the sovereignty resides in the great body
of the people, but it resides in them not as so many distinct individuals, but in their politic capacity only

Thus A.B.C. and D. citizens of Pennsylvania, and as such, together with all the citizens of Pennsylvania, share in the sovereignty of the
State

Suppose a State to consist exactly of the number of 100,000 citizens, and it were practicable for all of them to
assemble at one time and in one place, and that 99,999 did actually assemble:

The State would not be in fact assembled

Why?

Because the state in fact is composed of all the citizens, not
of a part only, however large that part may be, and one is wanting

In the same manner as 99l. is not a hundred, because one pound is wanting to complete the full sum

But as such exactness in human affairs cannot take place, as the world would be at an end, or involved in universal massacre and confusion, if entire unanimity from every society was required; as the assembling in
large numbers, if practicable as to the actual meeting of all the citizens, or even a considerable part of them, could be productive of no rational result, because there could be no
general debate, no consultation of the whole, nor
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Page 94
………………………………………………..
of consequence a determination grounded on reason and reflexion,
and a deliberate view of all the circumstances necessary to be
taken into consideration, mankind have long practised (except
where special exceptions have been solemnly adopted) upon the
principle, that the majority shall bind the whole, and in large
countries, at least, that representatives shall be chosen to act
on the part of the whole. But when they do so, they decide for
the whole, and not for themselves only. Thus, when the
legislature of any state passes a bill by a majority, competent
to bind the whole, it is an act of the whole Assembly, not of the
majority merely. So when this court gives a judgment by the
opinion of a majority, it is the judgment, in a legal sense, of
the whole court. So I conceive, when any law is passed in any
state, in pursuance of constitutional authority, it is a law of
the whole state acting in its legislative capacity; as are, also,
executive and judiciary acts constitutionally authorised, acts of
the whole state in its executive or judiciary capacity, and not
the personal acts alone of the individuals, composing those
branches of government. The same principles apply as to
legislative, executive, or judicial acts of the United States,
which are acts of the people of the United States, in those
respective capacities, as the former are of the people of a
single state. These principles have long been familiar in regard
to the exercise of a constitutional power as to treaties. These
are deemed the treaties of the two nations, not of the persons
only, whole authority was actually employed in their formation.
There is not one principle that I can imagine which gives such an
effect as to treaties, that has not such an operation on any
other legitimate act of government, all powers being equally
derived from the same fountain, all held equally in trust, and
all, when rightfully exercised, equally binding upon those from
whom the authority was derived.

I conclude, therefore, that every particle of authority which
originally resided either in Congress, or in any branch of the
state governments, was derived from the people who were permanent
inhabitants of each province in the first instance, and
afterwards became citizens of each state; that this authority was
conveyed by each body politic separately, and not by all the
people in the several provinces, or states, jointly, and of
course, that no authority could be conveyed to the whole, but
that which previously was possessed by the several parts; that
the distinction between a state and the people of a state has
in this respect no foundation, each expression in substance
meaning the same thing; consequently, that one ground of argument
at the bar, tending to shew the superior sovereignty of Congress,
in the instance in question, was not tenable, and therefore that
upon that ground the exercise of the authority in question can
not be supported.
Page 95

I have already, however, stated my opinion, that from the
nature of our political situation, it was highly reasonable and
proper that Congress should be possessed of such an authority,
and this is a consideration of no small weight to induce an
inference, that they actually possessed it when their powers were
so indifinite, and when it seems to have been the sense of all
the states, that Congress should possess all the incidents to
external sovereignty, or, in other words, the power of war and
peace, so far as other nations were concerned, though the states
in some particulars differed, as to the construction of the
general powers given for that purpose. Two principles appear to
me to be clear. 1. The authority was not possessed by Congress,
unless given by all the states. 2. If once given, no state could,
by any act of its own, disavow and recall the authority
previously given, without withdrawing from the confederation. In
the case of the Active, ten states out of twelve recognized the
authority, New-Hampshire voting in support of it. This was in
1779, long after the act of New-Hampshire was passed, which has
given occasion to the controversy in this cause, and in the same
year when the second act of New-Hampshire was passed, which
allowed an appeal to Congress in cases (as the act expressed it)
“wherein any subject or “subjects of any foreign nation or state,
in amity with this “and the United States of America, should
in due form of law, “claim the whole, or any part of the vessel
and cargo in dispute.” The resolution of Congress was dated the
6th March, 1779; the act of New-Hampshire in November
following. The vote of the delegates of New-Hampshire, in the
case of the Active, would not, indeed, be equivalent to a clear
grant of the power, but it is a respectable support of the
construction contended for by the defendants in error. It has
been properly observed, that a court cannot by its own decision,
give itself jurisdiction where it had none before; but if courts
are so constituted that one is necessarily superior to another,
the decision of the superior must, to be sure, prevail. This,
perhaps, is not conclusive as to the court of commissioners,
because it cannot be decided whether it was in fact the superior
court in respect to New-Hampshire, without deciding whether it
was constitutionally so in virtue of power from all the states.
This point it would be now necessary for this court to decide, if
it were not for the decision of the court of appeals in 1783, a
court of acknowledged prize jurisdiction, established in virtue
of express authority from all the states (New-Hampshire
included) and made a court in the last resort as to all prize
causes, or in other words (as expressed in the article of
confederation itself) in all cases of captures. And the
decision of this court on the subject of the two contending
jurisdictions, I
Page 96
consider to be final and conclusive, for the following reasons.

1. At the time the decision was given, it was the only court
of final appellate jurisdiction, as to cases of captures, in the
United States. It seems therefore to follow necessarily, that
upon all questions of capture their decision should be final
and conclusive, as much as the decision of this Court upon a writ
of error from the Circuit Court, or any other branch of its
jurisdiction, would be so.

2. To the suggestion at the bar, that the Court of appeals
could have no retrospect, several answers, I conceive, may be
given.

1. It is taking for granted the very point in dispute, that
this decision was retrospective. If Congress possessed this
authority before, and the articles of Confederation amounted only
to a solemn confirmation of it, it was in no manner
retrospective. It was in effect a continuance of the same court
acting under an express, instead (as before) of acting under an
implied authority, and allowing the full benefit of an appeal
regularly prayed, and rightfully enforced by the superior
tribunal, after an unwarranted dissallowance by the inferior.

2. Whether the article in the confederation giving authority
to this court as a superior tribunal in all cases of capture,
did authorise them to receive appeals in cases circumstanced like
this, was a point for them to decide; since it was a question
arising in a case of capture, of all which cases (without any
exception) they were constituted judges in the last resort. The
merits of their decision we surely cannot now enquire into, but
their authority to decide, not being limited, there was no
method, by applying to any other court, of correcting any error
they might commit, if in reality they should have committed any.

3. Whether their decision was right or wrong, yet nobody can
deny that the jurisdiction of the commissioners was at least
doubtful; of course the Court of Appeals found a case then
depending in the former court of the commissioners, after a
preliminary, but not a final, determination, for such I consider
it to have been. It was therefore a cause then sub judice, and
it being a case of capture and a question of appeal, no other
court on earth, but that, in my opinion, could decide it. And no
objection can be urged in this case against the authority of such
a decision, or the propriety of its being final, but such as may
be urged against all courts in the last resort, with respect to
the merits of whose decisions there may be eternal disputes, but
such disputes would be productive of eternal war, if some court
had not authority to settle such questions for ever.

I, therefore, have not the smallest doubt, that the decision
of
Page 97
the court in 1783, was final and conclusive as to the parties to
the decree. And this point appears to me so plain, that I think
it useless to take notice of any authorities quoted on either
fide, in relation to it, none of them, I conceive, in any manner
contravening the conclusive quality of such decrees upon the
principles I have stated, and some of them clearly, and beyond
all question, supporting it.

The decree of September, 1783, being by me thus deemed final
and conclusive, the next enquiry is,

Whether it was a decree which the District Court of
New-Hampshire, or the Circuit Court of New-Hampshire acting
specially in this cause for the legal reason alleged, had
authority to enforce, either by decreeing a specific execution,
or awarding damages for a non-performance of it?

Upon this branch of the subject a few words will be
sufficient. The District Court, by the act of Congress, hath the
whole original jurisdiction in admiralty and maritime causes.
Whatever doubt might otherwise have arisen, the decision of this
court upon the writ of error from Maryland, last February,
fully established, that this includes a prize jurisdiction, as
well as other cases of a maritime nature. I was not present when
the decision was given; had I been so, I probably should have
concurred in it, because the words, “all civil causes of
admiralty and maritime jurisdiction,” evidently include all
maritime causes, whether peculiarly of admiralty jurisdiction or
not; because a question of prize on the high seas is clearly of
a maritime nature, and therefore the English distinction
between an instance (which is strictly an admiralty) court, and
a prize court, does not apply to this case; more especially as
the District Court having as large authority given to it in all
maritime causes of a civil nature, as the constitution itself
prescribes. If that court does not possess such an authority, no
court can be instituted with powers adequate to that purpose, so
that under the present constitution, there could be no prize
jurisdiction at all; and the very tenure of all the judges (which
is for good behaviour) naturally excludes the idea of a temporary
and occasional establishment of any courts whatsoever. I mention
these reasons, not because the authority of the case receives any
additional sanction from my opinion, but because I was desirous
to take so favourable an opportunity of expressing my concurrence
in a decision of so much importance.[fn*]

It was clearly shewn at the bar, that a Court of Admiralty in
one nation, can carry into effect the determination of the Court
of Admiralty of another. A Court of Prize being equally grounded
on the law of nations as a Court of Admiralty, and proceeding
also, as that does, on the principles of the civil law,
Page 98
must, in common reason, have the same authority. I think it was
rightly observed, that the sentence consisted, in effect, of two
parts, one reversing the decree, and therefore vesting a right to
a restitution or a recovery in value in the appellant, the other
ordering a specific restitution. If that specific redress is from
any cause rendered impracticable, those who have unjustly, and
upon a sentence determined to be erroneous, received the property
or its value to their own use, must in justice be accountable;
otherwise form, which ought only to be the handmaid of right,
might prove its treacherous destroyer. The District Court having
sole original authority in cases of this kind, must have equal
power, as to such subjects, with the power possessed by this
court in any case where it has original jurisdiction, with this
difference only, that in the one case a writ of error is allowed,
in the other not. The Court of Appeals, which passed the final
decree, having expired, there seems at least as much reason for a
court of similar jurisdiction as to the subject-matter,
proceeding to give effect to its decisions, as there can be for a
Court of Admiralty of one nation giving effect to the decision of
a Court of Admiralty of another, to which perhaps it is a perfect
stranger, and of which it may know little more than that they
equally belong to the great family of mankind. I am therefore of
opinion, that the District Court, or the Circuit Court, acting
specially in this instance on account of the incapacity of the
former (as the law empowered it to do) had authority to enforce
the decree in question, by decrecing damages in lieu of a
specific restitution, which was impracticable.

The third question is,

Whether the authority hath been exercised properly in this
instance, under all the circumstances of the case?

The material circumstances to be considered, either from facts
admitted on the face of the record, or the public proceedings
referred to by it, and of which we are judicially to take notice,
seem to be as follow:

That the brig M’Clary was fitted out, under the authority, and
pursuant to certain resolutions of Congress, in consequence of
which, an act of the legislature had passed, in the state of New
Hampshire, which complied partially with those resolutions, but
made some regulations apparently intended as a restriction upon
them (whatever might be their legal operation:) That on the 30th
Oct. 1777, the captured the brig Susanna and cargo on the high
seas: That the captured property was libelled in the Court
Maritime of New Hampshire, (erected by the state law) on the
11th November, 1777: That Elisha Doane (whose administrators
are the defendants in error in this cause) exhibited his claim on
the 1st December following; and
Page 99
on the 16th the property was condemned, and ordered to be
distributed according to law: That within five days (the time for
praying an appeal prescribed by the resolutions of Congress)
Doane prayed an appeal to Congress, which was dissallowed: That
he then prayed and obtained an appeal to the superior court of
New Hampshire, agreeably to the directions of the state law,
which allowed of such an appeal in cases of this kind, the act
providing for an appeal to Congress, only in case of a capture by
an armed vessel fitted out at the charge of the United Colonies:
That on the first Tuesday in September, 1778, the superior court
adjudged the property to be forfeited, and ordered it to be sold
by the sheriff at public vendue for the use of the libellants;
and the court further ordered, “that the proceeds “thereof, after
deducting charges, should be paid to John Penhallow “and Jacob
Treadwell, agents for the owners, and to “George Wentworth
agent for the captors, to be by the said agents “paid and
distributed to the persons mentioned therein, according “to the
law of the state in that case made.”

That an appeal from this decree to Congress was prayed within
five days, and disallowed: and that afterwards, in obedience to
the decree, and in virtue of it, the property was sold, and
distributed to those entitled under the decree; and the
proportionate shares (upon the supposition of a lawful capture)
are admitted to have rightly been, one half to the owners, and
the other half to the officers, mariners, and seamen.

That an application was afterwards made to the commissioners
for hearing appeals under the authority of Congress; and after
due notice to the libellants in the original suit, who appeared
and pleaded to the jurisdiction, stating not only the defect of
the authority of the court to sustain the appeal under any
circumstances, but also special reasons why the Appellant was not
entitled to the benefit of an appeal under the circumstances of
the case (viz. the Appellant’s waving the benefit of his appeal
to Congress, by taking an actual appeal to the superior court of
New-Hampshire; that the appeal first demanded, was not
prosecuted for more than forty days; and that by the resolution
of Congress, no appeal should be had from the verdict of a jury,
but only the sentence of the judge) The commissioners, on the
26th June, 1779, decreed that they had jurisdiction, but
declined any further proceedings at that time in the cause, for a
reason they alledge.

That on the 12th September 1783, this case again came before
the court of appeals, established under the articles of
confederation; which, after a full hearing and solemn argument by
the advocates on both sides, passed a definitive decree in these
words, viz.
Page 100

“It is hereby considered, and finally adjudged and decreed by
“this court, that the sentences or decrees passed by the inferior
“and superior courts of judicature for the county of
“Rockingham, in the above cause, so far as the same have
relation “to the property specified in the claims of Elisha
Doane, “Isaiah Doane, and James Shepherd, be, and the same are
“hereby revoked, reversed, and annulled, and that the said
property “specified in the said claims, be restored to the said
claimants “respectively; and it is hereby ordered, that the
parties to “the appeal each pay their own costs, which have
accrued “in the prosecution of the said appeal in this court.”

In this case considerable difficulty has arisen from the
peculiar manner of pleading, which is said to be warranted by
local practice, but which certainly has very much contributed to
embarrass the question in the cause. There is neither a complete
demurrer, nor, I conceive, a regular issue; and it may be deemed
doubtful, whether what is termed a plea, ought to be considered
as a plea or an answer. I had, therefore, at first strong doubts
whether there was sufficient matter before us to ground a final
decree: But upon reflection it seems to me, that as the case has
been argued on both sides, upon a supposition that a final decree
could be made; as there has been no application on either, for
the examination of testimony, but the hearing took place without
objection upon the pleadings as they stand, and consequently, we
can regard the facts, only as stated on the record; as an express
consent that the cause should be decided on this footing, would
undoubtedly have been binding, and the circumstances in this case
evidently prove an implied one; I think the pleadings as they
stand, will afford sufficient foundation for a decree, especially
according to those principles of practice, which we are told
prevail in the state from which this record comes — a practice
which, until altered, we undoubtedly ought to pursue, when it is
not substantially inconsistent with justice.

Several objections have been offered (admitting the validity
of the final decree, in respect to the authority of the court
upon the points then before them) which I will consider in the
best manner in my power. —

I. It is objected that the Appellant Doane was dead, before
the final decision which was given in September, 1783; and this
it is alledged, though not appearing on the face of the record,
does appear from the letters of administration produced by the
libellants, which letters are dated in February 1783.

Admitting that the courts are bound to inspect the date of the
letters, and to regard that date as conclusive, and to infer the
fact accordingly from it; several answers have been given to this
objection; either of which, if valid, is decisive.
Page 101

1. That the proceeding in question was a proceeding in rem,
and upon such proceeding in civil law courts, the death of a
party does not abate. I incline to think the law is so, but as my
opinion is clear on other points in answer to the objection, I
avoid giving an opinion on this.

2. That admitting the decree for this cause to be erroneous,
it can only be avoided by a solemn proceeding in the nature of a
proceeding in error, and cannot be enquired into in this
collateral way.

Upon this point I am clear, that the decree was not rendered
absolutely void, but must stand regularly good till reversed for
this error, if it be one. So the matter stood while the court of
appeals was in being. If the Appellees could have avoided the
decree for this error, they might have applied to that court to
have reviewed its decree upon this suggestion. The expiration of
the court is no reason why the law in this particular should be
considered as changed. It is true, in many cases where there has
been error in a suit, and this has affected the right of a person
not a party, this error has been admitted to be shewn in a suit
where the point came collaterally in question. But it has never
been permitted to a party who might have set aside the original
judgment for error. I speak now of proceedings at common law. The
same reason, I think, applies in this case. It does, indeed, seem
reasonable, that if one party can proceed in the District Court
to enforce the decree, the other party may to impeach it. But
then this ought to be done in the same mode as in the other
court, and that for a very substantial reason: Because, when that
suggestion is the sole ground of enquiry, the other party may
come prepared to shew many things to do away its force. He may
(for aught I know) be permitted to shew a mistake in the date of
the letters. He may shew an actual knowledge of the fact by the
other party previous to the decree, and an acquiescence in it. He
may possibly shew that the administrators were in fact before the
court, though this does not appear on the face of the
proceedings. As the enquiry in this case is into a fact, perhaps
any thing of this kind may be shewn, and, is so, there surely
ought to be an opportunity of doing it.

3. There seems great reason in what was alleged at the bar,
that though it might have been competent for the administrators,
had the decree been against Doane, to have shewn this fact for
error, because neither the principal nor they had any opportunity
of supporting their right before the court, when the decree was
given, the former being dead, and the latter not being called
upon, yet that it is not competent for the Appellees, who were
before the court, were heard, and cannot allege (had that been
the fact) that they had sustained any prejudice by their being
heard ex parte.
Page 102

It is a rule at common law (the reason applies in equity and
other civil law cases) that is a party can plead a fact, material
to his defence, and omits to do it at the proper time, he can
never avail himself of it afterwards.

They had a day in court to plead the death of the Appellant.
If they say they did not know of it, the same might be alleged in
any case at common law, where we know it will not avail. The law
rather chuses that a party should incur a risque of this nature,
than leave a door open to endless litigation upon pretences, the
truth of which it is very difficult to discover.

4. This is an error in fact, and, in my opinion, it was a
powerful argument, that if we cannot reverse a decree even of a
District or Circuit Court for any error in fact, we have no
ground to set aside the solemn and final decree of a court that
has expired, for such an error. The argument, in my opinion, is
altogether a fortiori.

II. The death of Doane has been alleged for another purpose.

It is said, that the decree is to restore to Elisha Doane,
which was impossible, because Elisha Doane was not then in
being. Admitting that upon this record we are to take judicial
notice that Doane was dead at the time of pronouncing the
decree (in which I am by no means clear) yet if this was the real
reason why the Plaintiffs in error had withheld the property or
its proceeds, they might themselves have said so. They have not,
and as each party generally makes the best of his own case, we
are to presume that did not in fact constitute their reason. In
this case it could be of no avail, but at the utmost to prevent
the allowance of interest until a demand actually made. It never
could destroy the whole beneficial effect of a decree given in
rem, and when the parties who make the objection were in court,
and parties to the very decree complained of. I think nothing can
be more evident, than that if the decree be not totally void, the
administrators are entitled to the benefit of it, at least until
it is set aside for error, is there be any error in it, and such
a remedy is now practicable. If a scire facias was necessary
before execution could have been obtained out of the court which
passed the decree, it could be for no other reason than that the
other party might have an opportunity to contest the validity of
the letters, and the existence of the administration, if any such
objection could be supported. Such an objection might have been
made here. It has not been made. There is, therefore, I conceive,
no principle of law or justice which forbids giving effect to the
decree upon this ground.
Page 103

III. Another objection is, that the cause was not regularly
brought up to the Court of Appeals, and proceeded on, agreeably
to the resolutions of Congress.

There does not appear any ground for this objection in point
of fact. But I am clear that this is a point not now enquirable
into. When a court has final and exclusive jurisdiction in a
case, and has pronounced a solemn judgment, every other court
must presume that all their previous proceedings were right, of
which indeed they were the only competent judges.

IV. It is alledged, damages were not prayed for by the libel.
It is a sufficient answer, that there is a prayer for general
relief. And so little do I think of this objection, and so much
of the duty of a court, unaided by formal applications, where
there is a substantial one, that I am strongly induced to think,
if a case proper for a specific relief was laid before a civil
law court, and the direct contrary to the proper relief was
prayed for, yet the court even in this case would be justified in
granting the relief that might be properly afforded, if the party
who had committed the mistake consented to it: without that
indeed it might be improper, for no court ought to force a
benefit on a party unwilling to receive it.

These objections being all got over, which were urged against
any relief whatsoever, it is necessary to consider the particular
objections against the relief actually afforded. And here, I
think, very formidable objections occur.

I think the decree erroneous in these particulars:

1. In decreeing interest for the time previous to the date of
the decree in 1783.

2. In granting full damages against all the parties, without
distinguishing between the owners to whom one half was
distributed, and the agent who received the other half for the
benefit of the officers, mariners and seamen.

3. In making George Wentworth, the agent, personally liable
for any part.

1. As to the first point, as this libel proceeds only, and can
be supported, as I conceive, upon no other ground, upon the
principle of enforcing the decree of September 1783, so that
the Libellants might recover such benefit from it as the nature
of the case could admit, their case is not to be made better or
worse, as to the original right, than as the Court of Appeals
decided it.

The Court of Appeals might have decreed satisfaction for
detention, but did not. They did not even decree costs, but
ordered each party to pay his own costs. These things were
altogether discretionary in the court. That was the proper court
to judge, whether any damages should be allowed for detention. If
the decree is to be final and conclusive as to the
Page 104
subject matter, it must be so as completely in respect to the
detention, which formed one part of the case, as to the
restoration, which formed the principal object of it.

I should indeed have had some doubts as to the subsequent
interest, had it appeared that the Defendants had been unable to
comply substantially with the decree, owing to the death of
Doane, and the want, (had that been the case) of a subsequent
demand by the Administrators. But as that is not alleged, and
they set up their whole defence upon the point of right, merely,
we are not to presume, that those circumstances (if the
Administrators did not make a demand, with respect to which
nothing appears) had any weight in inducing their non-compliance
with the decree.

2. I am of opinion, that damages against all the Defendants
jointly, ought not to have been given. We are to look at
substance, not form. There were, in effect, two decrees
originally, one half of the value of the property to one party,
the other half to another. The reversal of the decree ought to
affect the decree itself, in the manner in which it was given.
Consequently, each party ought only to be required to restore
what he was adjudged to receive. The case of joint trespasses
stated at the bar, does, in my opinion, by no means apply. The
privateer in question, had a lawful commission. In the execution
of such an authority, difficulties often arise. Where they
happen, bona fide, the master is considered in no fault, and
neither he nor his owners made accountable, even in case of a
mistaken seizure, but for restoration, and, at the utmost, costs.
In case of gross misbehaviour, not only costs, but damages will
be allowed by the court of prize. It seems now to be settled that
they have exclusive jurisdiction on all such subjects. As not
even costs were allowed in this case, we are to infer that the
seizure was prima facie innocent; consequently, if a principle
of the common law, deemed by many highly rigorous, and founded,
perhaps, rather on the forms of proceeding, than on strict
justice, is those forms did not interfere, could be applied to a
case arising in a court, not only authorised, but bound to
distinguish between a mere mistake, and a wanton abuse of power,
there is no foundation for such an application, in fact, in the
present instance.

As owners are, in all instances, made jointly liable ex
contractu, and their respective shares are matters of private
cognizance, so that they, in all instances, appear jointly before
the court, and a payment to one owner is, in law, a payment to
all; I can discover no principle, upon which any discrimination
could be properly made in this case, in regard to the different
interests and actual receipts of the owners. I think, therefore,
the decree in regard to one moiety, ought to be jointly against
all the owners.
Page 105

3 The third error in the decree, in my opinion, is, making
George Wentworth, the agent, liable for any part. I have had
considerable doubts on this subject, but upon the fullest
consideration I have been able to bestow on it, I think he is not
liable. Had he held any of the property, at the time of the
decree of the Court of Appeals, he would have been undoubtedly
liable. Had he any now, or any of the proceeds in his hands, he
would also be liable. Perhaps he might, had he held any of the
property or proceeds, after actual notice of the Court of Appeals
taking cognizance of this case. Neither of these facts appears on
the face of the record, and as they are of importance, and
neither is asserted, neither is to be presumed. The contrary,
indeed, may be fairly inferred from the statement on the record,
and has been candidly acknowledged to be the real truth. He
therefore appears in the character of a mere agent, acting
avowedly for the benefit of others, and not for his own; and as
he had paid away the money in virtue of a decree of a court,
having prima facie authority for the time, to decide whether an
appeal did, or did not lie; I think he ought not to be ordered to
refund. It is alleged that the prayer of an appeal, in a case
where an appeal lies, ipso facto, suspends the proceedings, and
all afterwards is coram non judice. I cannot admit the doctrine
in that extent. Where there are inferior and superior
jurisdictions, and an appeal is allowed from the former to the
latter, and it is the express duty of the party praying an
appeal, to apply in the first instance, to the inferior court (as
I conceive it was in this case under the resolutions of Congress,
which directed an appeal to be prayed for within five days, and
security to be taken) I must presume that that court is prima
facie to judge whether it is applied for in a proper manner, and
whether all the requisites previous to his being fully entitled
to it, are complied with. If the court decides in any of these
particulars erroneously, it would be absurd to say, that the
party should lose the benefit of his appeal, but, in my opinion,
it would be equally unjust to hold, that a party who obeyed the
decree of a court, over whom he had no controul, should suffer by
his respect to the law, which constituted that court, and which
must therefore mean to support its decisions, in a cause coming
within its jurisdiction, while they remain uncontrouled by any
superior tribunal. It was shewn, that an inhibition, in cases of
this kind, sometimes at least issues to forbid the court’s
further proceeding. Can there be a stronger proof, that the court
had authority de facto (whatever may be said as to its
authority de jure) without that interposition! The law never
does a nugatory act, and therefore, I presume, would not forbid
the doing of a thing, which if done, is totally and absolutely
void. It was said, this was to bring the judge into contempt.
Page 106
But if the conduct of the judge who is bound to know his
jurisdiction is in the mean time innocent, surely an obedience to
him by a party, who is not to be presumed capable of deciding on
the jurisdiction by his own judgment, must be so. George
Wentworth, on the face of the whole proceedings, was a more
agent, an attorney in fact, and for aught I can fee, as
little liable to refund in a case of this sort, as any attorney,
in fact, or even an attorney at law, to whom money had been paid
under a judgment or decree, and who had paid it away to his
client. An agent in cases of this kind, is allowed by law. They
are recognized, I believe, in all prize acts. Mariners, whose
employment is on the sea, cannot be required without injustice to
attend their cases in person. In cases of privateers, the captors
are so numerous that the employment of one or more agents on
shore, seems unavoidable. The law, when it allows a benefit,
never intends that it shall be imperfectly enjoyed; therefore in
allowing privateering, it allows agents. These I consider as
nominal parties, and that the real parties are their
principals. Now I will suppose that in a common law case an
infant sues in a personal action by his guardian, and obtains a
judgment; the guardian receives the money, and pays it to the
infant after he comes of age. The judgment is afterwards
reversed. Can the guardian ever be made to refund to the
defendant, or must the person who was the infant do it? This case
appears to me a very parallel one in all its circumstances. The
infant cannot act for himself, and therefore is allowed to act by
his guardian. The law takes notice, by allowing agents, that
persons concerned in privateers, at least, cannot do well without
them. The guardian is nominally a party; so is the agent: but the
infant, in the one case, and the principals, in the other, are
the real parties. The guardian is accountable to the infant, for
money he received for him: so is the agent to the principal, for
money he receives. There is, that I can imagine, but one
difference, that can be suggested between them; that in the one
case, the judgment is good till reversed; and, therefore, all
lawful acts intermediately done, are valid. But the disallowance
of the appeal, is said to be a nullity, and all subsequent
proceedings in that court are void. I admit the consequence, if
the law be so. But I have already stated reasons, why I think it
is otherwise. A court of justice, indeed, ought at its peril to
take notice of its own jurisdiction, and it is not often that
cases of such doubt arise, that a Judge can be at a loss on the
subject. But it may happen, and does sometimes happen, that
innocent and serious doubts, are really entertained. Is a court,
therefore, because its judgments may be finally diffented from,
by a superior tribunal, to be considered as flying in the face of
the law, so that parties before it, shall not

Page 107

only be protected in disobeying it, but punished for their
obedience?

If this be the case, the old maxim, cedunt arma
togœ, will very ill apply to Courts of Justice. Instead of
being the peaceful arbiters of right, and the sacred asylum of
unprotected innocence, their very forums will be the seat of
war and confusion

I admit, indeed, where there is a conflict of
jurisdiction, and the party entitled to a decree, is prohibited
from obeying it, by a power claiming a superior cognizance, he
must at his peril obey one or the other; but this arises from the
absolute necessity of the case, because, whether the one or the
other be right or wrong, must depend on a subsequent decision. In
this case, George Wentworth, before the distribution, received
no monition, or any other process from the tribunal alledged to
be superior

He could not even be certain that the Appellants
would carry their application further

I consider him, therefore,
justifiable in obeying the decree, which at the time, was
compulsory upon him, and for a disobedience to which, he might
have been committed for a contempt, according to the opinion of
the court which pronounced it

The parties still have their
remedy against those who actually received the money, or their
representatives, if they can be found

They may perhaps be
entitled to a remedy under the bond gived, when the commission of
the privateer was granted

If either of these remedies be
difficult or inefficient, that does not make George Wentworth,
in point of law, more liable than if they were perfectly easy,
and clearly effectual

It will be one melancholy instance, in
addition to a thousand others, of the distress incident to a
doubtful and imperfect system of jurisprudence, which has been
since happily changed for one so precise and so comprehensive, as
to leave little room for such painful and destructive questions
hereafter

The 4th question is,

Whether this court can now rectify the decree in respect to
the parts of it considered to be erroneous, or must affirm or
reverse in the whole

The latter is certainly the general method at common law, and
it has been contended, that as this proceeding is on a writ of
error, it must have all the incidents of a writ of error at
common law

The argument would be conclusive, if this was a
common law proceeding, but as it is not, I do not conceive, that
it necessarily applies

An incident to one subject cannot be
presumed, by the very name of such an incident, to be intended to
apply to a subject totally different

I presume the term, “writ
of error,” was made use of, because we are prohibited from
reviewing facts, and therefore must be confined to the errors on
the record

But as this is a civil law proceeding, I conceive the
word “error” must be applied to such errors

Page 108

as are deemed such, by the principles of the civil law, and that
in rectifying the error, we must proceed according to those
principles. In a civil law court, I believe, it is the constant
practice to modify a decree upon an appeal, as the justice of the
case requires; and in this instance, it appears to me, under the
24th section of the judicial act, we are to render such a decree
as, in our opinion, the District Court ought to have rendered

If
this was a case, wherein damages were uncertain, and wherein for
that reason, the cause should be remanded for a final decision,

(which it does not appear to be, because the Libellants in the
original suit had a decree in their favour, which is now to be
affirmed in part)

yet the damages here are not uncertain, because
we all agree, that interest ought to be allowed from the date of
the decree, in September, 1783, upon the value of the property,
as specified in the report, against those who are to be adjudged
to pay the principal

Upon the whole, my opinion is, that the decree be affirmed in
respect to the recovery of the Libellants, in the original action
against all the Defendants but George Wentworth; that the libel
against him, be adjudged to be dismissed; but that there be
recovered against the other Defendants in the original action,
the value of the property they received, as ascertained in the
Circuit Court, with interest from the 17th of September, 1783

I am also of opinion, that the respective parties should pay
their own costs

[fn*] Page 97

See Glass et al. versus The Betsey et al. ant.

BLAIR, Justice

When this cause came before me, at Exeter, in New
Hampshire, I felt myself in a delicate situation, in having a
cause of such magnitude, and at the same time, of such novelty
and difficulty, as to have drawn the judgment of men of eminence,
different ways, brought before me for my single decision

It was,
however, a consolation to know, that whatever that decision might
be, it was not intended to be final, and I can truly say, it will
give me pleasure to have any errors I may have committed,
corrected in this court

Two points, and if I mistake not, only
two, were brought before me:

The first, whether under the
description of Admiralty and Maritime jurisdiction, the judiciary
bill gave to the District Court any jurisdiction concerning
prizes, I decided in the affirmative; and the same decision
having been afterwards made in this court, in the case of
Glasse, and others, I consider that as now settled

The other
point, was, whether the Court of Appeals, erected by Congress,
had authority to reverse the sentences given in the Courts of
Admiralty of the several States; and the source of the objection
upon this point, was the defect of authority in the Congress
itself

Here, also, my sentence affirmed the jurisdiction

I have attended as diligently, and as impartially as I could,

Page 109

to the arguments of the gentlemen, upon the present occasion, to
discover, if possible, how I may have been led astray, in the
decision of this question; but as the impressions which my mind
first received, continue uneffaced,

(whether through the force of
truth, or from the difficulty of changing opinions, once
deliberately formed)

I will repeat here the opinion which I
delivered in the Circuit Court, as the best method I can take for
explaining the reasons upon which it was founded. I would
premise, however, that it contains something relative to what had
been said at the bar of the Circuit Court, but which I believe
was not mentioned on this occasion

“The immediate question is, whether Congress had a right to
exercise, by themselves, by their committees, or by any regular
court of Appeals by them erected, an appellate jurisdiction, to
affirm or reverse a sentence of a state court of Admiralty, in a
question whether prize or no prize

If they possessed such an
authority, it must be derivative, and its source either mediately
or immediately the will of the people; usurpation can give no
right

The respondents contend they had no such authority, till
the completion of the Consideration in 1781, but only a
recommendatory power; the Libellants insist, that Congress was
considered as the sovereign power of war and peace, respecting
Great-Britain, and that to that power is necessarily incident
that of carrying on war in a regular way, of raising armies,
making regulations for their discipline and government,
commissioning officers, equipping slects, granting letters of
marque and reprisal, the power

(now contested)

of deciding, in
all cases of capture, questions whether prize or not, and every
power necessarily incident to a state of war

It is, at least,
certain, that the political situation of the American Colonies,
required a union of council and of force, by wise measures to
bring about, if possible, a reconciliation with the
mother-country, on a basis of freedom and security, or, if this
should fail, by vigorous measures to defeat the designs of their
tyrannical invaders; and although this alone cannot suffice for
an investiture in Congress, of the powers necessary to that end,
yet if the powers given be delegated in terms large enough to
comprehend this extent of authority, but which may also be
satisfied by a more limited construction, the supposed necessity
for such powers given to a federal head

(and the counsel for the
respondents have admitted that it would have been good policy)

is
no contemptible argument for supposing it actually given

In the
beginning of the year 1775, our affairs were drawing fast to a
crisis, and for some time before the battle of Lexington, a
state of warfare must in the minds of all men have been an
expected event

Some of the delagations

(I think three)

of
members to the Congress which met in May of that year,
………………………………………………..
Page 110
………………………………………………..
contain nothing but simple powers to meet Congress; the rest
expressly give authority to their delagates to consent to all
such further measures, as they and the said Congress shall think
necessary, for obtaining a redress of American grievances, and
a security of their rights

It is not in all of them worded
alike, but in substance, that seems to be the sense

Every thing
which may be deemed necessary!

I think it cannot well be
supposed, that in such a delegation of authority, at such a time,
there was not an eye to war, if that should become necessary

But
it is objected, that at most, no greater power was given to
Congress than to enter into a definitive war with
Great-Britain, not the right of war and peace generally; and
even that war, till the declaration of independence, would be
only a civil war

But why is not a definitive war against
Great-Britain (call it if you will a civil war) to be conducted
on the same principles as any other: If it was a civil war, still
we do not allow it to have been a rebellion — America resisted
and became thereby engaged in what the deemed a just war

It was
not the war of a lawless banditti, but of freemen fighting for
their dearest rights, and of men lovers of order and good
government

Was it not as necessary in such a war, as in any
between contending nations, that the law of nations should be
observed, and that those who had the conducting of it, should be
armed with every authority for preventing injuries to neutral
powers, and their subjects, and even cruelty to the enemy?

The
power supposed to have been given to Congress, being confined to
a definitive war against Great-Britain, and not extending to
the rights of peace and war generally, appears to me to make no
material difference; still the same necessity recurs, of
confining the evil of the war to the enemy against whom it is
waged

Till a formal declaration of independence the people of
the Colonies are said to have continued subjects to
Great-Britain; true, and that circumstance it is, which
denominates the war a civil war, as to which I have already
stated how, in my mind, the question is affected by that
circumstance

But it was asked whether, if during the war,
Great-Britain, at any time before the declaration of
independence, had declared war against any nation of Europe, that
nation would not have had a right to treat America with
hostility as being subject to Great-Britain?

According to this
supposition, Great-Britain might have had some temptation to
declare such war that she might have the co-operation of her
enemy, to reduce her colonies to obedience

But Great-Britain
was too wife to adopt such a policy; she knew that by her
engaging in such a war, the colonies, instead of finding a new
enemy to oppose, would have known where to find a friend; they
might have formed an alliance with such a power, who probably
would have considered it as an acquisition,
………………………………………………..
Page 111
………………………………………………..
and Congress might have been the sooner encouraged to separate
from Great-Britain, by a formal declaration of independence

As
the supposition that Congress was invested with all the rights of
war, in respect to Great-Britain, is of great moment in the
present cause, and as the power may not be so satisfactorily
conveyed by the instructions to the several delegates as might be
wished, partly because some of them did not exhibit farther
instructions than to attend Congress, and partly because the
instructions given to the rest, may be satisfied by a different
construction, it may be proper to consider the manner in which
Congress, by their proceedings, appear to have considered their
powers; not that by any thing of this fort, they had a right to
extend their authority to the desired point, if it was not given,
but because in shewing by such means, their sense of the extent
of their power, they gave an opportunity to their constituents to
express their disapprobation, if they conceived Congress to have
usurped power, or by their co-operation to confirm the
construction of Congress; which would be as legitimate a source
of authority, as if it had been given at first

If they were only
a mere council, to unite by their advice and recommendation all
the States in the same common measures (which, by the by, if not
uniformly pursued, might be disappointed) then the several
members might be justly compared to ambassadors met in a
Congress, and could only report their proceedings for the
ratification of their principals; but Congress resolved to put
the colonies in a state of defence; they raised an army, they
appointed a commander in chief, with other general and field
officers; they modelled the army, disposed of the troops, emitted
bills of credit, pledged the confederated colonies for the
redemption of them, and in short, acted in all respects like a
body completely armed with all the powers of war; and at all this
I find not the least symptom of discontent among all the
confederated states, or the whole people of America; on the
contrary, Congress were universally revered, and looked up to as
our political fathers, and the faviours of their country

But if
Congress possessed the right of war, they had also authority to
equip a naval force; they did so, and exercised the fame
authority over it, as they had done over the army; they passed a
resolution for permitting the inhabitants of the colonies to fit
out armed vessels to cruize against the enemies of America;
directed what vessels should be subject to capture, and
prescribed a rule of distribution of prizes, together with a form
of commission, and instructions to the commanders of private
ships of war: they directed that the general assemblies,
conventions, and councils or committees of safety of the United
Colonies, should be supplied with blank commissions, signed by
the President of Congress,
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………………………………………………..
to be by them filled up, and delivered to any person intending to
fit out private ships of war, on his executing a bond, forms of
which were to be sent with the commissions, and the bonds to be
returned to Congress

These bonds are given to the President of
Congress, in trust for the use of the United Colonies, with
condition to conform to the commission and instructions

The
commission, under which the Captain of the respondents acted, was
one of these commissions, it seems, only this is attempted to be
qualified by saying that it was countersigned by the Governor of
New Hampshire; but this circumstance seems to me to be of no
importance

Whoever has the right of commissioning and
instructing, must certainly have the right of examining and
controuling, of confirming or annulling the acts of him who
accepts the commission, and acts under it

And this exercise of
authority in granting commissions seems to have had the special
sanction of the several colonies, as they filled up the
commissions, took the bonds, and transmitted them to Congress

It
was urged in the course of the argument, that if Congress did
enjoy the power contended for, the confederation, which was a
thing of such long and anxious expectation, was not of any
consequence; but it is to be observed, that that instrument
contained some important powers which could not be derived from
the right of war and peace; it was of importance also, as a
confirmation of the powers claimed as necessarily incident to
war, because some of the states appeared not to be sensible of,
nor to have acknowledged such incidency; and yet the power may
have existed before. It is true, that instrument is worded in a
manner, on which some stress has been laid, that the several
States should retain their sovereignties, and all powers not
thereby expressly delegated to Congress, as if they were, till
the ratification of that compact, in possession of all the powers
thereby delegated; but it seems to me, that it would be going too
far, from a single expression, used perhaps in a loose sense, to
draw an inference so contrary to a known fact, to wit, that
Congress was, with the approbation of the states, in possession
of some of the powers there mentioned, which yet, if the word
`retain’ be taken in so strict a sense, it must be supposed they
never had

I take the truth to be, that the framers of that
instrument were contemplating what powers Congress ought to have
had at the beginning; and that in reference to the first occasion
of their assembling to oppose the tyranny of Great Brittain, at
least in reference to the time of framing the confederation, say,
the states shall retain

But however that may be, as I said
before, I think it is laying too great a stress upon a single
word, to contradict some things which were evidently true

“But it was said that New Hampshire had a right to revoke
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any authority she may have consented to give to Congress, and
that by her acts of assembly she did in fact revoke it, if it
were ever given

To this a very satisfactory answer was made:

if
she had such a right, there was but one way of exercising it,
that is, by withdrawing herself from the confederacy; while she
continued a member, and had representative in Congress, she was
certainly bound by the acts of Congress

I am therefore of
opinion that those acts of New Hampshire, which restrain the
jurisdiction of Congress, being contrary to the legitimate powers
of Congress, can have no binding force, and that under the
authority of Congress an appeal well lay from the Courts of
Admiralty of that State, to the Court of Commissioners of
Appeals

That Court has already affirmed their jurisdiction in
this particular case, upon a plea put in against it; and upon
that account, also, I incline to think that this court, not being
a court of superior authority, ought not to call it in question

Under these impressions, I must, of course, decree (whatever may
be the hardship of the case) that the Respondents, pay to the
Libellants, their damages and costs, occasioned by not complying
with the decree of the Court of Appeals, the quantum of which to
be ascertained by Commissioners”

If the reasoning upon which I went, in pronouncing the above
decree, in favour of the jurisdiction of the Court of Appeals, be
unsound, and if the decree stand in need of some better support,
it will probably find it in the consederation, by which authority
is given to Congress, to erect Courts of Appeal in all cases; and
from that time the authority of the court of Appeals is
confessed; the present case was then depending before that court,
they asserted their jurisdiction, and gave a final decree

As to
the objection, that previously to the consederation, Congress
were themselves sensible, that they did not possess supreme
Admiralty jurisdiction, because of their recommending to the
several States, that they should erect Courts of Admiralty, for
the trial of prizes, with appeal to Congress, I fee not how such
recommendations can prove any thing of the kind; for Congress
might have authority to establish such courts in the respective
States, when yet they chose only to recommend to the states to do
it

But admitting the authority of the Court of Appeals, and the
propriety of applying to the District Court of New Hampshire,
to inforce that decree in the way of damages, for not restoring
the vessel and cargo, when through the disobedience of the
present Plaintiffs in error, specific restitution was become
impossible, yet if any thing erroneous can be found in the decree
of the Circuit Court, it is the duty of this court to correct it

It is objected, that the damages allowed, were too high,
including interest on the appreciation
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of the Susanna and her cargo, from so remote a period as the
sale of the vessel and cargo

That George Wentworth, being a mere agent, and having
distributed among those who were entitled, under the decrees of
the Courts of Admiralty of New Hampshire, all the money by him
received for their use, ought not to have been subjected by the
decree of the Circuit Court, to the repayment of that money

And that a lumping decree, subjecting the Respondents
indiscriminately, to the payment of all the damages, although
their interests were several and distinct, was also erroneous

It does not, indeed, appear to me, that the decree is for the
payment of too large a sum, the damages having been swelled by
interest, calculated upon the appraised value of the Susanna,
her apparel, and of her cargo, from so remote a period

The
decree of the Court of Appeals was merely for restitution, and
that the Appellants should be placed at that time in the same
situation as they were in, previous to the capture

A
compensation for the loss they sustained in being in the mean
time deprived of their property, was not provided for in the
decree, nor were even costs allowed

The libel in the Circuit
Court being bottomed on the decree of reversal, sought only a
compensation in damages equivalent to a restitution at the time
of the reversal:

Interest, therefore, ought, I think, to have
been allowed only from that time

George Wentworth, it is true, was not concerned in interest;
he represented the interest of the officers and seamen, but had
none himself; and a mere agent who has paid away all, or any part
of the money by him received in that character, without having
been by a monition notified of the appeal, will be allowed credit
in his account for the money so paid away

But George Wentworth
appears, I think, in another character besides that of an agent:
he was a party libellant, as such he knew that the Claimants were
dissatisfied with the decrees of the Admiralty Courts of New
Hampshire, having prayed an appeal to Congress, and offered the
requisite security; and when the petition of appeal was referred
to the Court of Commissioners, and they directed notice to be
given to the parties, who appeared before that court, it seems
evident that they had notice

What then is the effect of this?

Was any thing further necessary to suspend the decrees of the
State Courts?

An inhibition is, indeed, worded in a manner
naturally leading to the supposition, that that instrument was
necessary to effect a suspension; but this, I think, cannot be
the case; for, it is observable, that by the practice, an
interval of three months is allowed before the inhibition is sued
out, in which time, if nothing had antecedently suspended the
sentence, it might be carried
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………………………………………………..
into complete effect, and every body be justified in their
conduct, as paying obedience to a decree continuing in full
force

The inhibition may be intended only as a more formal
direction to cease farther proceedings, when yet they may have
been inhibited before:

it has a farther use also, for it appoints
a day for the attendance of the parties

Conformably to this
idea, it is said, in Domat, that the appeal suspends the
decree

But a distinction is attempted here; it is admitted that
an appeal allowed by the inferior court, suspends, while an
appeal received by a superior court, is denied to have that
effect

But according to Domat, it works a suspension, even
against the will of the inferior Judge; and it would be very
strange, if the suspending operation of an appeal, to a Judge who
has an authority to reverse, should depend upon the consent of
the inferior Judge

But if the sentences of the State Courts were
indeed suspended, no person had authority to act under them; and
if any do, he takes upon himself the consequences

Besides, if
George Wentworth had innocently and without notice, distributed
the money which came to his hands, should not this have been
shewn to the Court of Appeals?

If that had been done, perhaps
after reversing the decrees of the State Court, instead of
decreeing restitution, they might have only decreed that the
owners should pay to the Appellants, the moiety of the sales by
them received

But they have decreed restitution specifically;
and if this court should so model the decree of the Circuit
Court, as to exonerate Mr. Wentworth, as to the moiety of the
money by him received, it will substantially alter the decree of
the Court of Appeals; and yet we say, that the decree now is to
be bottomed on that of the Court of Appeals, which is now to be
supposed right; and that for that reason it was erroneous in the
Circuit Court, to carry interest farther back than from the
period of reversal, and in this way give damages, which were not
intended by the Court of Appeals

The decree of the Circuit Court, appears now, I confess, to be
wrong, in that it subjects all the Defendants, indiscriminately,
to the payment of all the damages

In the original libel, they
had indeed joined, but it was in right of several interests,
which I think ought to have been distinguished in the decree;
justice obviously requires this; so obviously, that it is enough
to state the case to obtain the mind’s assent to the propriety of
distributive damages, instead of those which the decree
contemplates

I will only say further, that I have no remembrance
of having had this point brought to my view at the Circuit Court,
and it certainly did not occur to myself; but if any thing was
said upon the point, and I, with deliberation; then preferred the
decree as it stands, I am clearly now, of a different opinion

Upon the whole, I think the decree of the
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………………………………………………..
Circuit Court will stand as it ought, when corrected by reducing
the damages in the manner proposed, and when so reduced, by
proportioning them among the then Defendants, according to their
distinct interests

CUSHING, Justice

The facts of this case being already fully stated by the
court, I shall go on to enquire, whether the decree of the
Circuit Court ought to be reversed, for any of the errors
assigned

The first is, that the Court of Appeals, which made the decree
of restoration, had not jurisdiction of the cause

In answer to this, I concur with the rest of the

court,

that the

Court of Appeals,

being a

court under the confederation of
1781,

of all the states,

and being a

court

for

“determining finally, appeals in all cases of capture,”

and so being the

highest court,

the dernier resort in all such cases, their decision upon the

jurisdiction

and upon the merits of the cause,
having heard the parties by their council, must be final and conclusive, to this, and

all other courts:

to this, as a

Court of Admiralty,

because it is a

court

of the same kind, as far as relates to prize, and without any controuling or revisionary powers over it; to this as a

court of common law,

because it is entirely a

prize-matter,

and not of

common law cognizance

The cases, therefore, cited to shew, that the

common law

is of

general jurisdiction,

and that the

court of King’s bench,

prohibits, controuls, and keeps within their line,

Admiralty Courts,

Spiritual Courts,

and

other courts

of a

special,

limited jurisdiction,

do not, I conceive, touch this case

It is conceded by all, that the decision of a

court competent

is final and binding

Now, if the

Court of Appeals

was, under the consederation of

all the states,

a

court

constituted

“for determining finally appeals in all cases of capture,”

it was a

court competent;

and they have decided

Again, the

Admiralty of England

gives credence and force to the decisions of

foreign courts of Admiralty;

why not equal reason here?

It is true, the

courts of common law

there, will not allow a

greater latitude

to the

jurisdiction

of

foreign courts of Admiralty,

than to their own; as it seems natural and reasonable, they should not; for instance, holding plea of a contract made entirely at land, which seems to have been the substantial ground of a prohibition, in the case cited, respecting the decree in Spain

If the decree of the

court of Appeals

must he considered as binding, as it must, or there may never be an end to this controversy; that will carry an answer to several other errors assigned, viz. the third, fifth, and seventh, respecting the cause not being regularly before

Congress

or the

court,

and respecting the

Circuit Court

not entering into the merits — and to
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………………………………………………..
some other particular exceptions; as, that

appealing

to the

Superior Court of New-Hampshire,

was a waver of the right of
appeal to

Congress:

If that appeal was consistent with the
resolve of

Congress,

which only provided an appeal to

Congress

in the last resort, it was not a waver

Again, it is said, there ought to have been a jury at the

Court of Appeals;

but that, clearly, was not the intent of the resolve of

Congress,

nor of the Consederation, nor correspondent to the proceedings in

courts of Admiralty,

even where trials by jury are used and accustomed in other matters; nor was it thought a proper or necessary
provision in the present

constitution,

which has been adopted by the

people

of the

United States

As to the original question of the

powers of Congress,

respecting captures, much has been well and eloquently said on both sides

I have no doubt of the

sovereignty of the states,

saving the

power delegated to Congress,

being such as were,

“proper and necessary”

to carry on, unitedly, the common defence in the open war, that was waged against this country, and in support of their liberties to the end of the contest

But, as has been said, I conceive we are concluded upon that point, by a final decision heretofore made

The 2d exception in error is, that the sentence of the

Court of Appeals

was void by the death of

Mr. Doane

That fact does not appear upon the record of the

Court of Appeals,

and I think we cannot reverse the decree in this incidental way, if it could be done upon a writ of error

If it was pleadable in abatement, it ought to have been pleaded or
suggested there by the opposite party

On the contrary, it is implied by the record, that Doane was alive; otherwise he could not have been heard by his council as the record sets forth; for a dead man could not have council or attorney

On the other hand, the letters of administration imply that he was dead at the time; but those letters were not before the

court,

and therefore could not be a ground for their abating the suit, if it was abateable at all for such a cause

Here seems to be record against record, as far as implications go, and I take it to be an error in fact, for which, by the judicial act, there is to be no reversal

Upon this head, a case in

Sir Thos. Raymond,

is cited by the council for the Plaintiff in error, of trover by five plaintiffs — one dies — the rest proceed to verdict and judgment — and adjudged error, because every man is to recover according to the right he has at the time of bringing the action;
and here each one was not, at the time of bringing the action, entitled to so much as at the death of one of the plaintiffs

But a case in Chancery Cases, p. 122, is more in point —
where money was made payable by the decree to a man that
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………………………………………………..
was dead, and yet adjudged, among other things, no error

But another matter, which seems well to rule this case, is, that, being a suit

in rem,

death does not abate it

So say some books, and I do not remember to have heard any to
the contrary

It does not affect the justice of the cause; it makes no odds to the plaintiff in error, whether the money is to be paid to

Colonel Doane

being alive, or to his

legal representatives,

if dead

The 4th exception, that damages are not prayed for, yet decreed, is answered by a prayer for

general relief

The 8th exception is, that the

District

and

Circuit

Court

possessed not

admiralty jurisdiction,

and that the

Circuit Court

had no right to carry the decree into execution

If

courts of Admiralty

can carry into execution decrees of

foreign Admiralties,

as seems to be

settled law

and

usage;

and if the

District

and

Circuit Courts,

have

admiralty powers

by the

law

and

constitution,

as was adjudged and determined by this

court

last February,

I think there can be no doubt upon this point

Another question of consequence is, whether

Mr. George Wentworth,

being agent for the captors, and having paid over, can be answerable jointly with the other libellants for the
whole, or, in any way, for any part. If it was simply the case of an agent regularly paying over, I should suppose he could not justly be called upon to refund

But it seems he was an original
libellant, a party through the whole course of the suit; and an
appeal being claimed in time, at the court and term, at which the
libellants obtained the decree

(of which, therefore, he had legal
notice)

the appeal, if a lawful one, in my opinion, suspended the
sentence and must make him answerable for whatever monies he
should receive under that decree, in case of reversal: every man
being bound to take notice of the law, at his peril

It is suggested, that an inhibition was necessary to take off
the force of the sentence

An inhibition

(according to the form
of one produced, which issued in England last July, near four
months after the trial and

appeal

at

New-Providence

inhibits the

judge

and the party from doing any thing in

prejudice

of the

appeal,

or of the

jurisdiction

of the

court appealed to,

and cites the party to appear and answer the party appellant, at a
certain time and place

The

citation

to the

party

to

appear

and

answer

at the

proper

time

and

place,

I take to be the most

substantial part

of the

process;

the

inhibitory part

to be

rather matter

of

form,

or in

pursuance

of the

suspending nature

of the

appeal,

and as a

further guard

and

caution

against mis-applying the

property

For it appears to me absurd to suppose, that an

inhibition

taken out

seven

or

eight

months

after the
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………………………………………………..
appeal

(nine months being allowed for the pnrpose)

should be the only thing that

suspended

the

sentence,

leaving the

judge

below and the

party,

all that time,

to carry the

sentence

into

compleat execution

The

judicial act

in

providing

an

appeal

in

maritime causes

to the

Circuit Court,

contains no hint of an

inhibition

as necessary to

suspend

the

sentence

Domat

is

express,

that an

appeal

has that effect, and I believe other

civil law writers

The

rejection

of the

appeal,

if

unwarranted,

could not take away the

right

of the

citizen

There does not appear any thing actually

compulsory

upon

Mr. George Wentworth,

to

pay

the

money,

except what may be supposed to be

contained

in the

decree appealed

from,

the force of which was

suspended

All this

matter

might have been

offered

at the

Court of appeals,

where the

parties

were

fully heard,

and, if

offered,

was, no doubt,

involved in their

decision

It is said,

if I understood the

matter right,

that there ought to have been a

monition

from the

Circuit Court

to

Mr. Wentworth,

to bring in what he had in his hands

I see no necessity for a

monition

exactly in that

form

There was a

monition

to come in and

answer

the

libellants

upon the

justice

of the

cause,

as set forth; — he came in

and had an

opportunity

to

defend himself:

and the

question

was,

whether he was

answerable

upon the

circumstances

of the

case,

which was

determined

by the

court

By the

cases

in

Durnford

and

East,

as well as from

other books,

it is clear that the

admiralty

has not only

jurisdiction

in rem,

but also

power

over the

persons

of the

captors

and all those who have come to the

possession

of the

proceeds

of the

prize,

to do

complete justice

as the

case requires,

to

captors

and

claimants

But I cannot conceive why the

decree

of the

court of appeals

is not

conclusive

upon

Mr. George Wentworth

as much as upon the

other libellants

Again; it is

objected,

that the

decree

being for

restoration,

damages

could not be

awarded

The

decree

was not

complied

with — the thing was gone

How, then,

could

justice

be done without

giving

damages?

Then the question is,

how are we to understand the

decree;

as joint upon all the

libellants

for the whole,

Mr. George Wentworth

included,

or as

decreeing

the

owners

to

restore

one half,

and

Mr. George Wentworth,

agent

for the

captors,

the

other half?

If the latter,

which perhaps may be a

reasonable

and

just construction,

conformable

to the

spirit

of the

original libel,

then the

decree

of the

Circuit Court

is in that

respect

erroneous
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Also as to

The less is always included in the greater
——————————————————————THE LESS is ALWAYS INCLUDED IN the GREATER
——————————————————————
The inclusion of one thing is the exclusion of another
——————————————————————THE INCLUSION of ONE THING IS the EXCLUSION of ANOTHER
——————————————————————http://legal-dictionary.thefreedictionary.com/_/dict.aspx?rd=1&word=include
——————————————————————
This MEANS that the term

The less is always included in the greater
——————————————————————THE LESS is ALWAYS INCLUDED IN the GREATER
——————————————————————
The inclusion of one thing is the exclusion of another
——————————————————————THE INCLUSION of ONE THING IS the EXCLUSION of ANOTHER
——————————————————————http://legal-dictionary.thefreedictionary.com/_/dict.aspx?rd=1&word=include
——————————————————————
This MEANS that the term

The less is always included in the greater
——————————————————————THE LESS is ALWAYS INCLUDED IN the GREATER
——————————————————————
The inclusion of one thing is the exclusion of another
——————————————————————THE INCLUSION of ONE THING IS the EXCLUSION of ANOTHER
——————————————————————http://legal-dictionary.thefreedictionary.com/_/dict.aspx?rd=1&word=include
——————————————————————
This MEANS that the term